Bangalore District Court
M/S.Jain Housing And Constructions vs ) Union Of India on 18 April, 2015
IN THE COURT OF IX ADDL.CITY CIVIL AND
SESSIONS JUDGE AT BANGALORE (C.C.H.5)
Dated: This the 18th day of April 2015
Present: Shri Krishnamurthy B.Sangannanavar,
B.Com.LL.B.,(Special)
IX Addl. C.C & S.J, Bangalore.
O.S. NO.5158/2010
Plaintiff: M/s.Jain Housing and Constructions
Limited, A limited company registered
under the Provisions of the Indian
Companies Act, 1956 and having its
registered office at No.11, Soma-
sundar Street, T.Nagar, Chennai 600
017.
Also having its representative office at
M/s. Jain Housing and Constructions
Ltd., No.72, Varsharuthu Road,
Gavipuram Extn., Hanumanthanagar,
Bangalore 560 019.
Represented by its authorized
signatory and Authorized representa-
tive Girish Jain, S/o. Kanthilal Jain
[By Sri.V.B.Shivakumar, advocate]
-Vs-
Defendants: 1) Union of India, Ministry of Defence,
Rakshana Bhavan, Rajbhavan Road,
New Delhi. Represented by its
Secretary.
2) Parachute Regiment Training
Center, Devegowda Road, R.T. Nagar,
2 O.S.No.5158/2010
Bangalore 560 032. Represented by
Major P.S. Beemaiah
3) Major P.S.Beemaiah, Age by major,
Parachute Regiment Training Center,
Devegowda Road, R.T. Nagar,
Bangalore 560 032.
(By Sri.A.N.Gangadharaiah, advocate)
Date of institution of the suit 26.07.2010
Nature of the suit Permanent injunction
Date of commencement of 31.5.2011
recording the evidence
Date on which the judgment 18.4.2015
was pronounced
Total duration : Day/s Month/s Year/s
22 08 04
JUDGMENT
This is a suit filed by plaintiff for grant of permanent injunction restraining the defendants from attempted interference, dispossession and taking forceful possession of his lawful possession pertaining to the schedule properties and to restrain the defendants from trespassing or attempting to trespass inside by breaking open the 3 O.S.No.5158/2010 compound walls provided by the plaintiff in respect of suit schedule properties.
2. On facts, case of the plaintiff is pleaded below:
The plaintiff is a limited company registered under Indian Companies Act. The object of plaintiff company is purchasing immovable property and undertaking developments of such property and in this suit, plaintiff company purchased Survey No.42 now assigned Municipal No.6/3-2 situated at Mattadahalli situate within limits to BBMP known as Dinnur Sultan playa main Road, R.T. Nagar, Bangalore-32 under registered sale deed executed by Smt.Papamma, P.Krishnappa, P.Ramachandra, P.Ramesh and others. The company also purchased another extent bearing Municipal No.6/3-2, old Municipal No.6-3 (carved out of Survey No.42, Matadahalli which is also known as H.D.Devegowda Road, ward No.95 under a registered sale deed executed by P.Manjunath and his wife Smt.Bhavani Manjunath. Apart from these two properties, plaintiff purchased another extent bearing municipal No.24 (earlier site No.1,2 and 3) with Municipal No.25 (earlier site Nos.4 and 4 O.S.No.5158/2010
5) are formed in Survey No.42, Matadahalli. The said property purchased under registered sale deed executed by N.Govindaraju. All their properties are combined property is described as schedule properties under plaint.
The schedule property was originally belongs to Papaiah and there was a partition on 15.4.1972 in respect of their entire property which was registered partition deed came to be rectified subsequently. In the said partition, Survey No. 41/1, 41/2 and 42 including the lands were allotted to Papaiah. They were notified for acquisition by CITB under notification dated 25.6.1974 for formation of Matadahalli layout. However, the said acquisition came to be dropped by notification dated 25.1.1977. Consequently, the entire property of Papaiah got marketable title. Accordingly, they were conveyed in favour of the plaintiff by executing two registered sale deeds.
After purchase of schedule property applied for transfer of khata to BBMP which is pending consideration for the reason that one Mr.P.Venugopal filed civil suit contending that he has right in respect of the property by way of partition that was effected which came to be 5 O.S.No.5158/2010 dismissed by judgment and decree dated 10.5.2008 and an appeal preferred by him in RFA 1206/2008 is pending before Hon'ble High Court. The number of civil suit filed by P.Venugopal is O.S.No.1551/04. In view of the disposal of the suit filed by P.Venugopal, plaintiff's title and possession are established in all respect and that apart, title and possession of the plaintiff pertaining to schedule property stand unrebutted and the plaintiff is in lawful possession in respect of schedule property. When the matter stood thus, 3rd defendant started interference by attempted to trespass inside the schedule property by breaking open the compound wall provided by plaintiff in the schedule property and on 17.7.2010 at about 8.00 PM attempted trespass and attempted interference. Of them, Mr.P.Krishnappa, one of the vendor of the plaintiff is residing in the adjacent property to the schedule property and his property was also damaged by defendants who were using the armed forces of Union of India. In this regard, plaintiff filed criminal complaint against 3rd defendant. The 3rd defendant and the defendants have absolutely no right in any manner whatsoever to trespass inside the schedule property and to 6 O.S.No.5158/2010 damage the compound wall provided by the plaintiff on the eastern side of their property. As such, the plaintiff left with no alternative has approached the Court for grant of injunction restraining the defendants from interfering with plaintiff's peaceful possession and enjoyment of suit schedule property and restraining the defendants from making attempts or interfering with trespassing, dispossession and continued to undertake illegal interference by breaking open the compound wall provided by plaintiff in respect of schedule property.
3. On facts, defence put forth by defendants 1 to 3 is as follows:
They contend that Government of Mysore has acquired land measuring 613 acres 38 guntas in the year 1912 inclusive of 2 acres 16 guntas in Survey No.42 of the Matadahalli. The total land acquired by the then Government of Mysore situated in five villages such as Sawar Lines, Firing Range, Water Works, Kaval Byrasandra and Matadahalli. The same were handed over to the Ministry of Defence vide Board Proceedings dated 26.2.1955. Since the date of taking over 7 O.S.No.5158/2010 possession of the said properties, the defendants are in possession and enjoyment of the same. The defendants had not constructed security wall over an extent of 2 acres 16 guntas of Survey No.42 of Matadahalli village, taking advantage of the same, plaintiff's vendors and plaintiff had created documents in connivance of the revenue authorities and they are claiming illegal claim over the property of the defendants and they are attempting to make out a case on false grounds.
The lands and buildings in the use or occupation of Ex-State forces were transferred to Government of India under Article 295 of the Indian Constitution relating to part-B States. In this regard, there were extensive correspondences between Government of Mysore and Government of India. Subsequently, both Governments after mutual consultations and pursuant to orders of Government of India, Ministry of Defence constituted a Board of Officers who met on 26.2.1955 for preparing the schedule of boundaries, areas, locations and descriptions sites belongs to Ex-Mysore State force properties at Bangalore and Mysore. The Board having assembled prepared a site plan and schedule of 8 O.S.No.5158/2010 boundaries in respect of site forming 613 acres 38 guntas numbering 1 to 90 along the boundary as shown in the plan in 1955. The Board Proceedings were signed by the President of the Board on 15.3.1955. Since then 613 acres 38 guntas including land bearing Survey No.42 of Matadahalli became deemed possession and enjoyment of defendants as the same vest with Government of India, Ministry of Defence.
Because of encroachment of the defence land by plaintiff and their vendors in Survey No.42 of Matadahalli, they had applied for survey of the entire land in their possession by virtue of land acquisition and taking over possession of Survey No.42 during 1955. The Director of Land Records by issuing notices to the concerned parties including plaintiff had carried out the survey of the land in Survey No.42 of Matadahalli, at that time vendors of plaintiff in order to avoid and to escape the survey filed writ petition seeking stay of the ongoing survey, anticipating their encroachment would be established. Hence, claim of the plaintiff in the present suit is illegal which cannot be entertained by the Court. The cousin brothers of plaintiff's vendor Mr.Govindaraju, Mr.Lakshmana, 9 O.S.No.5158/2010 and Padmanna claiming their title over the land bearing Survey No.42 of Matadahalli alleging encroachment by these defendants over an extent of 2 acres 16 guntas filed a suit in O.S.No. 15802/2001 which was disposed on 3.12.2009 by granting injunction to the land in their possession in Survey No.41/1 and dismissed their claim over Survey No.42 of Matadahalli giving finding regarding possession of the said land with the defendants. Now, the plaintiff filed suit for the same land by giving some other numbers supported by created documents to suit their illegal claim. There is no cause of action for the plaintiff to file suit. The plaintiff has not complied mandatory provisions of Section 80 of C.P.C. and the plaintiff is not entitled for relief of injunction as prayed.
4. In view of the above prime pleadings, this court formulated the following issues for the purpose of trial:
(1) Whether the plaintiff proves that it is/was in lawful possession of the schedule property as on the date of the suit?10 O.S.No.5158/2010
(2) Whether the plaintiff proves that the defendants interfered with its possession?
(3) To what decree or order?
5. In support of the above issues, one witness examined for plaintiff as P.W.1 and through him, Exs.P-1 to P-21 documents got received and exhibited. On the contrary, D.W.1 & 2 examined for defendants and through them, Exs.D-1 to D-13 were being received in evidence.
6. After closure of evidence on either side, having heard the learned counsels for plaintiff and defendants 1 to 3, this court would prefer to record the following findings on the above issues:
Issue Nos.1 & 2 : In the Negative
Issue No.3 : As per final order,
for the following:
REASONS
7. Issue Nos.1 & 2: The schedule property under plaint schedule is a property bearing survey No.42, according to plaintiff, now assigned municipal No.6/3-2 Matadahalli, Kasaba Hobli, Bangalore North Taluk, presently situated within 11 O.S.No.5158/2010 the limits of BBMP. It is also known as Dinnur Sultanpalya Main Road, R.T.Nagar Post, Bangalore 32, measuring East to West on the northern side 136 feet, on the southern side 118 feet and North to South on the eastern side 122 feet and on the western side 110 feet is bounded on the East by defence compound, West by Dinnur Main Road, North by Property of Narayanappa & Sons and South by Property of S.Venkatashamappa and sons and for this property, plaintiff has sought for grant of permanent injunction restraining the defendants 1 to 3 from dispossessing or taking forcible possession of his lawful possession and restraining them from trespassing or attempting to trespass inside and breaking open the compound walls provided by plaintiff. It is therefore, first of all, the plaintiff has to prove his lawful possession over this property as on the date of institution of the suit.
8. According to plaintiff's company, schedule property was purchased under Ex.P-2 to P-4 sale deeds executed by Smt.Papamma, P.Krishnappa, P.Ramachandra, P.Ramesh and others. Thus, the foundation for the plaintiff company to plea its 12 O.S.No.5158/2010 lawful possession over the schedule property is on the basis of these sale deeds. In this regard, the Court has to examine all these sale deeds one by one. Ex.P-2 is a certified copy of sale deed dated 9.1.2004 and is executed by Smt.Papamma, P.Krishnappa, Smt.Pramila Krishnappa, Ashwath S.K, P.Venugopal, Smt.Nirmala Venugopal, P.Ramachandra, P.Manjunath, Smt.Bhavani Manjunath, P.Ramesh and Smt.Manjuladevi Ramesh in favour of M/s. Jain Housing and Construction Limited represented by Mr.Sanjay Gandhi. The property purchased under this sale deed for Rs.88,40,000/-. The property purchased under the this sale deed is a vacant land presently bearing Municipal No.6/3-2 (old Municipal No.6-3) (carved out of Survey No.42, Matadahalli, Ward No.95, Bangalore, measuring and bounded as under:-
On the East: Private property (earlier land belonging to the defence) and measuring on that side 122 feet;
On the West: Dinnur Main Road (presently known
as H.D.Devegowda Road) and
measuring on that side 110 feet;
On the North: Property bearing Municipal No.24 (earlier Site No.1, 2 and 3) belonging 13 O.S.No.5158/2010 to Narayanappa (presently to Govindappa) and measuring on that side 136 feet;
On the South: Property belonging to S.Venkata-
shamappa and sons and measuring on that side 118 feet in all measuring 14732 square feet and delineated in red colour and earmarked in letter "ABCCLMNA" in the plan annexed hereto.
9. The second sale deed would be Ex.P-3 is dated 16.3.2004 and it is executed by Smt. Papamma, P.Krishnappa, Smt.Pramila Krishnappa, Ashwath S.K, P.Ramachandra, P.Ramesh and Smt. Manjuladevi Ramesh in favour of M/s. Jain Housing and Construction Limited represented by Mr.Sanjay Gandhi. The property purchased would be under two schedule: they are schedule 'A' property bearing Municipal No.6/3-2 (old Municipal No.6-3) (carved out of Survey No.42 situated in Ward No.95, Bangalore, measuring and bounded as under:-
On the East: Private property (earlier land belonging to the defence) and measuring on that side 122 feet;14 O.S.No.5158/2010
On the West: Dinnur Main Road (presently known as H.D.Devegowda Road) and measuring on that side 110 feet;
On the North: Property bearing Municipal No.24 (earlier Site No.1, 2 and 3) belonging to Narayanappa (presently to Govindappa) and measuring on that side 136 feet;
On the South: Property belonging to S.Venkata-
shamappa and sons and measuring on that side 118 feet in all measuring 14732 square feet and delineated in red colour and earmarked in "ABCCLMNA" in the plan annexed.
and under schedule 'B' property, an undivided 4/6th share (equivalent to 9821.33 square feet) in the land comprised in schedule 'A' property for Rs.58,94,000/-.
10. Further under Ex.P-4 sale deed dated 18.11.2005, Mr.P.Manjunath, Smt.Bhavani Manjunath executed sale deed in favour of M/s. Jain Housing & Construction Limited represented by Sanjay Gandhi. Schedule 'A' property is a vacant land presently Municipal No.6/3-2 (old Municipal No.6-3) carved out of Survey No.42 and bounded as under:-
15 O.S.No.5158/2010On the East: Private property (earlier land belonging to the defence) and measuring on that side 122 feet;
On the West: Dinnur Main Road (presently known as H.D.Devegowda Road) and measuring on that side 110 feet;
On the North: Property bearing Municipal No.24 (earlier Site No.1, 2 and 3) belonging to Govindaraju & Purchaser (earlier Narayanappa) and measuring on that side 136 feet;
On the South: Property belonging to S.Venkata-
shamappa and sons and measuring on that side 118 feet in all measuring 14732 square feet and delineated in red colour and earmarked in "ABCDLMNA" in the plan annexed hereto.
Schedule 'B' property is undivided 1/6th share (equivalent to 2455.33 square feet) in the land comprised in schedule 'A' property. Its market value is Rs.20,94,180/-.
11. Thus, after make mention of the properties purchased by the plaintiff company from the persons mentioned under the sale deeds, whether they were been lawfully inducted in such 16 O.S.No.5158/2010 property has to be examined by the court. In other words to say that the plaintiff company has to prove that under these three sale deeds, company lawfully came in possession of these properties, since defendants have categorically denied not only their possession but also the title. They also denied the title of the vendors in respect of suit schedule property which could be borne from the defence statement.
12. It is to be noted from the pleadings of the plaintiff company that the schedule properties purchased under Ex.P-2 to P-4 have been brought under plaint schedule to seek relief of injunction against defendants with a definite extent even with square feets and on the contrary, the defendants also claim that schedule property is in their possession and enjoyment being used for Military.
No doubt, it is true that before the Court, all are equal whether private party or Government makes no difference but the facts remain true that every one required proving the legal requirements to seek legal reliefs.
17 O.S.No.5158/201013. The plaintiff company in support of their case, besides producing certified copies of sale deeds, produced Ex.P-5 letter addressed by vendors of plaintiff company to Smt.M.V. Hemavathi, W/o. Srirama dated 9th January 2004 informing their confirmation that they have no objection for Smt.M.V.Hemavathi to deal with and dispose off her property and they would not interfere in any of her properties.
14. Ex.P-6 is encumbrance certificate in Form No.15 for the year 29.5.2003 to 16.3.2004 in respect of MC 6/3-2, Old MC 6-3, Survey No.42 totally 14732 square feet equivalent to 9821.33 square feet is standing in the name of M/s.Jain Housing and Construction represented by Sanjay Gandhi and in column No.5 could found names of vendors of plaintiff whose name could be found in Ex.P-2 to P-4. Ex.P-7 is encumbrance certificate in Form No.15 wherein deed of indemnity could be found in column No.4 and name of plaintiff company in respect of suit property as on 17.3.2004. Ex.P-8 is khata extract dated 16.4.2007 wherein found new No.6/3-2 of Ward No.95 / Kaval Byrasandra, site area 14732.00 square feet 18 O.S.No.5158/2010 is vacant land, effective date is 1.10.1994, Mutation Register No.294/2000-2001, total tax Rs.8,790/-, vacant land yearly value Rs.32,800/-. Ex.P-9 is certified copy of invitation from plaintiff to perform Bhoomi pooja. It is to be noted here that Ex.P-2 to P-9 were produced in some other suit and all certified copies which could be borne from these documents that they were produced in O.S.No.1551/2004 and in O.S.No.3904/2007 but failed to produce pleadings, findings recorded by the courts in those suits for scrutiny by this Court to appreciate whether they would be helpful to the plaintiff company in the matter of their possessory rights in exclusion of others in particular, the defendants here in.
15. Ex.P-10 is a copy of plaint in O.S.No. 1551/2004 filed by P.Venugopal and P.Manjunath against Smt.Papamma, P.Krishnappa, P.Rama- chandra, P.Ramesh and M/s.Jain Housing & Construction Limited. Thus in this suit, plaintiff herein the suit, is arrayed as defendant No.5 and the relief sought in the said suit was for partition of the schedule properties by metes and bounds to the extent of 2/6th share; to declare the sale deed 19 O.S.No.5158/2010 executed by defendants 1 to 4 in favour of defendant No.5 as void, illegal and not binding on plaintiffs; grant for injunction restraining defendants from interfering with their peaceful possession of items 1 and 2 of the schedule properties; for grant of permanent injunction restraining the defendants 1 to 4 from alienating by way of sale and restraining from putting up construction on items 1 and 2 of the schedule properties. Further, to hold an enquiry for future mesne profits out of items 3 to 8 of schedule properties.
16. It is important to note here that even this plaint is incomplete and the description of the properties under plaint schedule are not at all available for scrutiny to ascertain whether suit property herein was also one of the item and to ascertain what are all the properties under the said suit and what defence was taken by defendants in the said suit by those defendants and what findings were recorded by the Courts concerned on such pleadings which could not be now not known to the court.
20 O.S.No.5158/201017. Thus, the plaintiff company to prove its lawful possession over the suit property has produced the above documents before the court to seek injunction against defendants 1 to 3 besides, Ex.P-11 legal notice dated 21.7.2010 notifying defendants that property bearing Survey No.42, now assigned Municipal No.6/3-2 measuring 122' x 110' bounded on the East by defence compound, west by Dinnur Main Road, North by property of Narayanappa and sons and South by property of S.Venkatashamappa and Sons has been purchased by plaintiff and the title and possession is traced by way of registered sale deed executed by Smt.Papamma, P.Krishnappa, P.Ramachandra, P.Ramesh and P.Manjunath and possession has been delivered by P.Venugopal, Smt.Gajalakshmi, Smt.Jayalakshmamma and Smt.Chandramma.
18. This Court, at the very outset, stated that in order to establish possession of the plaintiff company over the suit property first of all, to prove that its vendor delivered possession of such property under said sale deeds and to prove that such possession was lawfully delivered. In order to 21 O.S.No.5158/2010 prove the said fact, plaintiff company examined none except P.W.1. In other words to say that they failed to examine P.Venugopal, Smt.Gajalakshmi, Smt.Jayalakshmamma and Smt.Chandramma respectively and they failed to examine vendors under Ex.P-2 to P-4 respectively. In this suit, their evidence would be material, since the plaintiff is a company involved in developing the land by undertaking housing projects which could be borne from GPA and the evidence of P.W.1.
19. Although, the plaintiff got-notified under notice that O.S.No.1551/04 connected with O.S.No.6347/06 in which the title and possession of plaintiff was decided, failed to produce the findings recorded by the court in those suits for the scrutiny of the court. It is to be noted here that it was also notified that now the matter is pending before Hon'ble High Court in RFA No.1206/08 filed by P.Venugopal, one of the vendors in respect of property conveying title and possession of the plaintiff herein and it was also notified that title of plaintiff is traced from title of late Papaiah under partition deed dated 15.4.1972 recited in Ex.P-2 to P-4 failed to produce the said partition deed for 22 O.S.No.5158/2010 scrutiny to ascertain whether suit schedule property was fell to the share of Papaiah under partition deed dated 15.4.1972. It is also recited in Ex.P-2 to P-4 sale deeds that land bearing Survey No.41/2 which was later rectified to Survey No.42 under rectification deed is dated 26.5.2003. The gap in between 15.4.1972 and 26.5.2003 is a long gap and it is not known to the Court who got rectified and who were the parties in the said rectification deed. Further, in these sale deeds recited that Survey Nos.41/1, 41/2 and 42 of Matadahalli village were notified for acquisition by CITB for the purpose of formation of layout known as "Matadahalli layout" u/s.18(1) of City of Bangalore Improvement Act, 1945 vide notification dated 25.6.1974 which was gazetted on 18.7.1974 in Part III-1 and whereas subsequently, the said acquisition proceedings with regard to lands in Survey Nos.41/1, 41/2 and 42 (including the lands allotted to Papaiah under the partition deed dated 15.4.1972) were withdrawn u/s.48 of Land Acquisition Act, 1894, vide notification dated 25.1.1977, published in official gazette dated 10.2.1977 in Part III-1. The plaintiff has failed to produce such notification which would really play 23 O.S.No.5158/2010 a vital role whether suit schedule properties were fell to the share of Papaiah and they were once notified by CITB were been de-notified u/s.48 of Land Acquisition Act, since plaintiff under plaint schedule has specified property purchased under Ex.P-2 to P-4 is measuring East to West on the northern side 136 feet on the southern side 118 feet and North to South on the eastern side 122 feet and on the western side 110 feet bounded with specific boundaries, has to prove that this was in possession of his vendors and the vendors having been lawfully possessed such property executed sale deeds and the plaintiff company came in lawful possession under Ex.P-2 to P-4 respectively.
20. It is important to note here that plaintiff has not produced survey records and if they would be produced, which would really clinch the factum of possession of party concerned and when plaintiff has failed to produce such material documents, as such, this court can safely draw an inference that if they would be produced before the court would go against them, that too when defendants categorically denied not only title of the plaintiff but also the title of their vendors contending that 24 O.S.No.5158/2010 Survey No.42 is property of defendants and the same is in their possession which is a vacant site being used by defence.
21. Further to note here that one P.Krishnappa, one of the vendor of the plaintiff as per Ex.P-13 on 17.7.2010 alleged against defendants, to Police Inspector, R.T.Nagar police station that 14000 square feet property in Survey No.42 of Matadahalli village belongs to his family and they paid betterment charges and khata stands in their name, are paying taxes for the past 10 years and on 17.7.2010, 3rd defendant has illegally demolished the compound on the eastern side, has assaulted him and his relatives, restrained from entering into their property with dire consequences causing damages to an extent of Rs.10.00 lakhs was registered in CR No.271/2010 u/s.143, 147, 427, 448, 506 r/w. 149 of IPC. Ex.P-14 is FIR thereon the complaint. When P.Krishnappa, plaintiff and his vendors specifying the property by means of square feet corresponding to Survey No.42 are bound to produce when this Survey No.42 agricultural land was converted into non-agriculture and what are the documents to 25 O.S.No.5158/2010 that effect to consider that the property could be measured in terms of square feet is not forthcoming from the evidence on record. The plaintiff has produced Ex.P-15 to P-20 photographs, Ex.P-21 is CD of these photographs and by such photos, they are contending that the name of plaintiff could be seen on security room, store room and compound wall and to show how existing compound wall is situated, how H.D.Devegowda main road is running close to the disputed property and how compound wall could be seen is separates the property of plaintiff and defendants and could see the existing board of plaintiff company which was damaged by the defendants. It is to be noted here that from these photographs, the Court cannot decide lawful possession of a party, since specific dimension is defined under plaint schedule and the plaintiff is bound to prove lawful possession over such property not by way of photographs but through cogent evidence. Cogent evidence does means, survey records, mother deeds of vendors, copies of notification and de-notification and evidence of vendors, since defendants 1 to 3 have categorically denied not only the title of plaintiff but also the 26 O.S.No.5158/2010 vendors. Further the plaintiff company failed to examine its vendors. Further from the evidence borne on record could see that the dispute inter-se between vendors is still pending and it is stated by the plaintiff company that it is pending before Hon'ble High Court. It is therefore, this court is opined that all those documents would become vital to decide on the possessory rights of the parties, in particular the plaintiff and the defendants.
22. Further to note here that the property of defendants adjoining the property of vendors of plaintiff which would play a vital importance herein to opine that only by way of proof of title, the plaintiff has to seek relief. In other words to say that plaintiff to seek declaration of title to protect its right to give legal sanctity or validity to sale deeds obtained from its vendors and not by filing bare injunction suit when property has been specified in square feet and when the defendants denies their title.
23. If we examine the evidence of P.W.1, it is elicited in cross-examination that suit property is a 27 O.S.No.5158/2010 vacant land and is situated within BBMP limits, although plaintiff has produced khata extract as stated above, has failed to produce previous khata stood in the name of its vendors. It is now known when it was got mutated in the names of vendors and what was the status of the said property as on the date of the sale deeds. The mutation in respect of Survey No.42, 41/1 and 41/2 coupled with RTC are not produced by plaintiff.
24. It is submitted on behalf of defendants that one Mr.Govindaraju has also filed suit against defendants and he filed writ petition not to conduct survey which of course is not aware to P.W.1 but as stated above, survey alone could prove existence of property purchased by the plaintiff company and to prove title of the vendors, when defendants denied title of plaintiff over schedule properties. Even it is submitted that O.S.No.5107/10 and O.S.No.5108/10 were filed by vendors of plaintiff were being withdrawn which is not known to P.W.1 and he denies suit property was not in existence as on the date of sale. He denies that the workers of plaintiff tried to put up temporary construction in the property of defendants. P.W.1 in his evidence 28 O.S.No.5158/2010 has deposed that property situated behind the property of plaintiff belongs to defendants. In order to know how much property is in possession of plaintiff and what is the property situated behind the said property belongs to defendants did not disclose from the evidence on record. It is therefore, this court is of the considered view that bare injunction suit filed in the present form against defendants when they deny title is not maintainable.
25. P.W.1 admits that in respect of suit property still few disputes are pending before the Court. However, he does not knew filing of O.S.No.26999/11, O.S.No.27000/11, O.S.No. 272001/11 and were filed for declaration and for recovery of possession of properties and now knew that only after filing of those three suits, vendors of plaintiff withdrew O.S.No.5107/10 and O.S.No. 5108/10 respectively. It has also come in the evidence of this witness that Laksmamma and Padmanna filed suit against Govindaraju in O.S.No.15802/01 in respect of Survey No.41/1 and 42 and in the said suit in respect of Survey No.41/1, suit came to be decreed and it was held 29 O.S.No.5158/2010 that Survey No.42 belongs to defence property for which P.W.1 is not aware of it. Whether he is aware or not, facts remain true that for the reasons cited supra, suit filed by plaintiff is for bare injunction and when defendants have taken up specific defence that Survey No.42 and the suit property belongs to defence property and when contend that Govindaraju started to file writ petition restraining to conduct survey. Under such circumstances, evidence of such person would be relevant to rebut the contention failing which, suit filed in the present form would be held not maintainable.
26. It is to be bear in mind that when plaintiff has approached Court of law seeking relief of injunction has to prove his lawful possession. In other words to say that he has to stand on his own and he cannot take weakness of the defendants. It is therefore, whether or not, evidence of D.W.1 and D.W.2 who are land officer, PRTC and Colonel working in defence did not knew about the hard reality of the suit property in dispute, have deposed categorically that plaintiff has suppressed the true fact and approached Court being company 30 O.S.No.5158/2010 of builders and developers is the property of the defendants situate in Survey No.42 measuring 2 acres 16 guntas and deposed vendors are strangers, have no manner of right, title whatsoever over the suit properties and deposed that Government of Mysore had acquired the land measuring 613 acres 38 guntas in the year 1912 inclusive of 2 acres 16 guntas in Survey No.42 of Matadahalli on the basis of records which they preserved in their office. They have deposed that the total land acquired by the then Mysore Government situate in five villages such as Sawar Lines, Firing Range, Water Works, Kaval Byrasandra and Matadahalli were handed over to Minsitry of Defence vide Board Proceedings dated 26.2.1955. Since the date of taking over of possession of the said properties, defendants are in possession and enjoyment of the same. It is to be noted here that disputed property being Survey No.42 and the defendants herein have set up defence that they are in possession of 2 acres 16 guntas in Survey No.42 by producing Ex.D-6 to D-9 correspondence letter copies dated 30.3.1954, 9.9.1954, 22.10.1954. Further, produced Ex.D-10 copy of MLR, Ex.D-11 copy of gazette dated 31 O.S.No.5158/2010 7.3.1912 found Survey No.42 which was standing in the name of Muniyellappa, the extent of said Survey number was 5.22 acres and the extent required by defence was 2.16 acres bounded on the East by Survey No.1, sub No.2, Ramaswamy's land, West remaining portion of Survey No.42, North Survey No.43 and South by Imperial Service Lancer's limited. Thus, 2 acres 16 guntas in Survey No.42 was acquired for defence purpose is shown from the said document by the defendants by denying the title of the plaintiff and their vendors. The Personnel Asst. Commissioner and Civil Officer, Bangalore District was authorized to take order for the acquisition of the said land. No doubt, the defendants have not produced subsequent documents but the facts remain here that plaintiff is a purchaser of property under Ex.P-2 to P-4 has to show that Survey No.42 measuring 2.16 acres which was standing in the name of Muniyellappa was acquired under Ex.D-11 or subsequently was not in possession of defendants. It is therefore, as already opined that plaintiff has to seek declaration of title and not by filing suit for injunction seek relief against the defendants who being defence and when their 32 O.S.No.5158/2010 property, even according to the plaintiff's vendors is situated adjacent to their property.
27. In this regard, it would be more useful to refer here a decision reported in (2008) 4 SCC 594 in Anathula Sudhakar vs. P.Buchi Reddy (dead) by LRs and others wherein held, ----if a cloud is said to raise over a person's title, when some apparent defect in his title to a property or when some prima facie right of a third party over it, is made out or shown, a suit for declaration has to be filed and a suit for injunction simpliciter is not maintainable.
28. It is therefore, followed by the above decision and in view of the discussion made above, in the opinion of this Court, when plaintiff has specified schedule property with a definite dimension and boundaries has to establish not only his title but also the title of the vendors. Therefore, the contention for learned counsel for plaintiff that plaintiff is in physical possession of suit property as on the date of the institution of the suit as the plaintiff company got into possession under Ex.P-2 to P-4 could not be acceptable, since 33 O.S.No.5158/2010 the plaintiff has to establish title even to seek relief of injunction against the defendants in the present suit as such, the contention of counsel that defendants have no iota of evidence to show that schedule property belongs to defence cannot be acceptable at all in the present suit filed by the plaintiff company when they say that property of the defendants is situated adjacent to their property and when the defendants deny their title to the suit property.
29. Thus, in view of the discussion made above, evidence placed on record not specified to hold that plaintiff company is in possession of suit schedule property. Under such circumstances, question of protecting plaintiff's possession and giving liberty to the defendants to recourse to due process of law does not arise at all. The plaintiff, as already stated above, has failed to produce relevant documents which would clinch the rights of the parties and the documents produced are not sufficient to hold that plaintiff is in lawful possession over the suit schedule property, particularly when failed to produce partition deed, rectification deed of vendors. It is therefore, 34 O.S.No.5158/2010 counsel for defendants rightly submitted that the title of the vendors in respect of suit property would play a vital importance and in this injunction suit filed against defendants, plaintiff has to be held not entitled for grant of injunction. In this view of the matter, contention of learned counsel for plaintiff that plaintiff has established lawful possession as he was inducted by sale deeds corroborated from photographs could not be acceptable at all. It is therefore, contention that at the most defendants have to follow rule of law by invoking civil laws or by invoking Public Premises Act does not arise, when this Court is of the opinion that evidence is not sufficient to hold that plaintiff has established its lawful possession over the suit schedule properties as on the date of the suit in respect of specific dimension with boundaries as found under the plaint schedule. In this view of the matter, findings on issues 1 and 2 would be record without saying in the Negative.
30. Issue No.3: In view of the above findings and in the result, this court passes the following:
35 O.S.No.5158/2010O R D E R
(a) The suit of the plaintiff filed for injunction simplicitor is held not maintainable and the suit is hereby dismissed with no order as to cost.
(b) Draw a decree accordingly.
(Dictated to the J.W., transcribed by her, corrected and then pronounced by me in the open court, on this the 18th day of April 2015).
(Krishnamurthy B.Sangannanavar) IX Addl. City Civil & Sessions Judge, Bangalore.
A N N E X U R E List of witnesses examined for plaintiff:
P.W.1 Girish Jain List of witnesses examined for defendants:
D.W.1 Col. M.S.Salunke D.W.2 Col. P.Sreekumar
List of documents exhibited for plaintiff:
Ex.P-1 Copy of resolution
Ex.P-2 to 4 Certified copy of sale deeds
36 O.S.No.5158/2010
Ex.P-5 Copy of NOC
Ex.P-6 & 7 Copies of encumbrance certificate
Ex.P-8 Khata extract
Ex.P-9 Invitation
Ex.P-10 Plaint copy in O.S.No.1551/04
Ex.P-11 Copy of legal notice
Ex.P-12 Postal receipts
Ex.P-13 Copy of complaint
Ex.P-14 Copy of FIR
Ex.P-15 to 20 Photographs
Ex.P-21 CD
List of documents exhibited for defendants:
Ex.D-1 to 4 Photographs
Ex.D-5 Authorization letter
Ex.D-6 to 9 Copies of correspondence
Ex.D-10 Copy of MLR
Ex.D-11 Copy of gazette
Ex.D-12 Copy of plan
Ex.D-13 Survey sketch
IX Addl. City Civil & Sessions
Judge, Bangalore.